Moves to abolish the innovation patent

Published on 23 Sep, 2015

Since 2001, Australia has had a second tier innovation patent system that provides a very fast patent grant with a limited term, delayed examination and no obviousness test, but rather a reduced innovative step test.

The system was introduced to attempt to stimulate innovation in Australian small and medium enterprises (SMEs) by providing an easy, quick and inexpensive way to achieve protection for low-level inventions. While many SMEs have taken the opportunity to file innovation patents, they have also become an extremely effective tool used by any patent litigants to stymie defendants who attempt to invalidate an innovation patent.

A recent study by the Australian Patent Office on the low economic impact of the innovation patent system has now led to an undercurrent of calls to abolish it.

The now defunct Australian Government Advisory Council on Intellectual Property (ACIP), in its final report, has recommended the abolition of the innovation patent. Additionally, the Patent Office has now called for submissions from interested parties on the recommendation to abolish the innovation patent.

It is believed there are likely to be significant changes afoot to either abolish or severely curtail the innovation patent. As the changes are unlikely to be introduced retrospectively, there is a strong imperative to act now before the advantages of the innovation patent system for patent applicants are curtailed.

This article by Shelston IP Partner, Peter Treloar, first appeared in Managing Intellectual Property magazine, September 2015.

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